Abhorring Hate Speech

"So also the tongue is a small part of the body, and yet it boasts of great things. See how great a forest is set aflame by such a small fire."
- The Bible, James 3:5

The Arguments

Free speech is fun because it tends to stir things up. With very little effort one can create a fire storm (as figuratively referenced in the Scripture above). But, this does not only mean that free speech has potential for good. Some speech goes beyond creating controversy and delves into topics that society has named cruel, areas that our culture has beaten down and labeled unequivocal evils. Hate speech is such a type of speech.

The argument for legislating against hate speech is simple. Hate speech has no societally useful benefits. What is worse is that hate speech has a real capacity for causing emotional pain in the individuals it targets. So, really, what reason could there be for preserving such speech? As Briton's Justice Minister Jack Straw said in support of an anti-hate speech law in England, "it's time for the law to recognize that society is appalled by hatred and invective directed at people based on their sexuality." The same, of course, applies to racist speech or speech against a particular religion. And it ought to apply in America as well, for, as a society, we have also become appalled at this sort of baseless hatred.

And, in fact, the Supreme Court has found a few cases in which hate speech may be punished. In Beauharnais v. Illinois (1952), the Court found a law banning expression that portrays "depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy" to be constitutional. The court declared that any speech which could be found to break this law could actually be libel against a group. The court states, "we cannot deny to a State power to punish the same utterance directed at a defined group" as it would toward an individual. However, this finding was made practically irrelevant in the 1964 decision New York Times Co. v. Sullivan, when the court declared that actual malice, making a statement "with knowledge that it was false or with reckless disregard of whether it was false or not," is part of the definition of libel. Most racists and bigots vehemently believe what they are saying, so it is impossible to find them guilty of libel.

More recently, the court found another excuse to limit hate speech. In Virginia v. Black, the court decided the legality of a Virginia ban on cross-burning with intent to intimidate, and declared that such an intent was reason enough to ban certain speech. So doing, the court created a new category of unprotected speech called the "true threat." True threats are "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence." Interestingly, the court decides that "the speaker need not actually intend to carry out the threat." Really this case has less to do with hate speech than it seems, and more to do with threats of violence in general. In fact, the court decided, "the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form." Basically, the court writes, the hate speech was not the problem, it was the intimidation.

The Supreme Court's struggle to ban hate speech reflects the strength of the arguments against such legislation. Society's defeat of many hateful and racist ideas is a powerful example of the triumph of the marketplace of ideas, and we must be careful not to let the marketplace destroy itself by killing further discussion. We need to remember that if society is going to arrive at truth through the melding of ideas, we must not squelch ideas simply because they have not been declared truth. This would turn the marketplace of ideas into a sort of one-time event, where there can be no improvement on what we have come to believe. Besides, how real is our triumph if we have no untruths to compare it to? There is no victory in truth unless there is some falsehood to act as a foil to it.

One also must question the reasoning that society's distaste for something means it ought to be illegal. Are we to take a straw poll every time a question of morality comes up? Is it even the job of the government to legally define what is moral? Or is there, hidden deep in the First Amendment, some right of individuals to hold their own beliefs, and even to state them, or to get in peaceful groups and have these beliefs together? I think so. The First Amendment was established precisely so that the government has no right, and more importantly, no means, to define morality.

Hate speech laws also have no record of success. If you ask Amir Butler, the executive director of the Australian Muslim Public Affairs Committee, how such laws are doing in his nation, he will tell you that they are a resounding failure. What laws such as this tend to do, according to Butler's article, is turn hate-speech into something newsworthy. He says, "When a state criminalises hateful ideas, it gives them legitimacy." And hate speech legislation certainly does not bring people from different groups together, except that now they go to each other's events just to try and catch them saying something worth suing them over. This is certainly not in the public interest!

Personal Interaction
I've noticed that my blog articles so far have all been about challenges to my libertarian beliefs. In a sense, though it was not my design, I have been confronting my faith in libertarianism by invoking some of the strongest arguments against it: that it hurts Americans in war, that it dismantles the marketplace of ideas by not giving every idea equal time, and that it harms people personally by allowing hate. Really, that is what libertarianism is - faith. I do not mean faith in a religious sense (biblically defined in Hebrews 11:1), though it is similar. I mean that libertarianism is a strongly held belief that is almost impossible to empirically prove. In a sense, when libertarianism sees a problem (like hate speech), it refuses to take action to solve it, even though no one can be really sure that inaction is the best way to handle the situation. Often, the arguments to do something, like making hate speech illegal, seem much more compelling than the hopeful, just-wait-it-out arguments of libertarians.

Hate speech is one of the harder issues that I have argued (even with myself). What I really want to do is look at someone who has been hurt by racism or hatred and say, "Here, I am supporting laws to protect you." All my instinct and upbringing have taught me to protect the weak from the cruel and to shelter the oppressed and abused. But I still have to take the harder view in this case - that there should be no legislation against hate speech. This decision is not only out of intellectual honesty and a desire to be consistent with my other views, but it is because I truly believe that speaker-focused freedom absolutely will, in the end (or at least later than now) work for everyone's benefit.


An Aside: What ISN'T Hate Speech
Ann Coulter has been demonized in the last week for her "hate speech" against Jews. I suppose Coulter is used to being demonized, but I like her columns too much to let these charges go unanswered.

Coulter said: "[Christians] just want Jews to be perfected, as they say . . . . That is what Christianity is. We believe the Old Testament, but ours is more like Federal Express. You have to obey laws. We know we're all sinners [she is interrupted here]."

Finding hate in her statement is hilariously impossible. She says that she wants "Jews to be perfected." Perhaps we could call this hate speech if Coulter had said, "we want Jews to be kicked in the shins," or something even remotely mean. Wanting someone to be perfected is wanting something GOOD for them.

Now that is only the surface issue. Bible believing Christians affirm that their faith is the completion of the Jewish faith. Christ says, "Do not think that I came to abolish the Law or the Prophets; I did not come to abolish but to fulfill" (Matthew 5:17). Hebrews 12:2 refers to Jesus as the "perfecter of faith." In fact, the entire book of Hebrews is a detailed explanation of how Christianity is meant to be the end of Judaism. Christ replaces the High Priests (Hebrews 2:17-18), and His sacrifice on the cross replaces the animal sacrifices practiced by the Jews - the "laws" she was referencing (Hebrews 13:11-12). These beliefs are normal among Christians because they are explicitly stated in the New Testament.

Since we can not find any malice or hatred in what Coulter said, but instead rather standard Christian theology, we can only assume that the attacks on her speech are actually attacks on what she believes. Therefore, since she is being attacked simply for holding to a different viewpoint, Coulter is closer to being a victim of hate speech than a perpetrator.



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